In Idaho can a police officer make a traffic stop for any reason he wants?

Technically? No.  Practically?  Pretty much.

According to the fourth amendment and its accompanying constitutional interpretation by the United States Supreme Court, as well as well settled case law in Idaho, in order for a police officer to stop your vehicle he or she must have reasonable articulable suspicion that criminal activity is afoot.  Absent such reasonable articulable suspicion, the officer must not stop your vehicle, and if he or she does it is an unlawful stop and any evidence of a crime that he or she may find thereafter will be suppressed as ‘fruit of the poisonous tree’.

So that sounds pretty fair and just, the officer must have a lawful reason to stop you, or he will not be able to use any evidence he collects when he stops you illegally.  But in practice, the legislature and courts have written and interpreted the laws regarding motor vehicles so broadly that only the most incompetent of police officers could not find a lawful reason for stopping your motor vehicle.

And bear in mind, the reason that the police are stopping you may obviously not be the real reason they are stopping you.  This is known as a ‘pre-textual stop’.  So for example, you are driving your car at 2 AM in the morning, and the officer wants to stop you to see if you have been drinking.  He can find an unrelated reason to pull you over (e.g. tail light out) just so can stop you and see if you’ve been drinking.  It is well settled law that pre-textual stops are perfectly legal. The officer doesn’t even have to charge you with the pre-textual reason he stopped you, and very often they do not.

Here are some examples of laws that are frequently used by police officers in Idaho to justify stopping your vehicle.

Idaho Code 49-808 (Turning Movements and Required Signals):

This statute deals with turn signals.  The statute mandates that “On controlled-access highways and before turning from a parked position, the signal shall be given continuously for not less than five (5) seconds and, in all other instances, for not less than the last one hundred (100) feet traveled by the vehicle before turning.” Courts have interpreted this to mean that on highways that have exits and onramps, you must leave your turn signal on for at least five seconds before making a turning movement.  This also applies if you a turning from a parked position, for example if you are turning out from being parallel parked on the side of the street.  That means that if you only signaled for 4 seconds before making the movement, then you have violated the law, and the officer can stop your vehicle.  Now take out your stop watch and watch five seconds pass by.  Now imagine waiting that long before changing lanes on the freeway. You will quickly see that if an officer wanted to stop you, all he would have to do is follow you long enough to see you make this mistake that so many driver’s make.  And sometimes it’s not even a mistake, its a necessary maneuver when traffic is changing so quickly.

Next, the statute requires that on all other roadways that you signal for 100 feet before turning.  Now the fact of the matter is, in many instances, especially in the city, this is next to impossible.  If you are traveling in slow moving traffic in down town Boise, it is impossible to wait until you have traveled 100 feet with your turn signal on before changing lanes, or turning.  Again, an officer that wants to stop you only needs to follow you for a few minutes before you will be forced to make this maneuver, and then he will have his lawful basis to stop you.

Idaho Code 49-644 (Required Position and Method of Turning):

This statute deals with how you should behave when you turn your motor vehicle.  This is a favorite of police officers, because it’s a common way to drive, and most people do not realize it is illegal.  Again, it is also sometimes necessary if you have an immediate second turn you need to make.

Most driver’s know that when you are turning left that you need to turn into the closest lane of travel, otherwise you may run into a vehicle coming the opposite direction who is lawfully turning right.  However, what driver’s don’t realize is, you have to do the same when turning right.  The code requires that ‘Both the approach for a right turn and the right turn shall be made as close as practicable to the right hand curb or edge of the roadway’.  Courts have interpreted this to mean you must remain in the closest lane to the curb.  If you take a right turn, and swing into the lane further from the curb, you are in violation of this statute.  This gives a police officer a lawful reason to pull you over.

Idaho Code 49-637 (Driving on Highways Laned for Traffic)

This is a very frequently used statute for stopping vehicles, especially if you are out past 2AM. The statute requires you to ‘drive as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety’.  Follow any car, on any road, day or night, and count how many times it touches one of the lines marking the lanes of travel.  Each time a car touches one of those lines marking the lanes of travel, they have violated 49-637.  Again, it doesn’t take very many minutes of an officer following your vehicle for you to make this mistake.  It’s even more likely to happen when a police officer is tailing you because you are nervously watching the officer in your rearview mirror, and are bound to let your vehicle drift just enough to touch or cross these lines.  The officer then has the reasonable articulable suspicion he needs to stop your vehicle.

Idaho Code 49-119(19)(Definition of Roadway) and 49-630 (Drive on Right Side of Roadway):

These two codes combine to form a reason similar to the last code discussed.  This combination of codes is used to stop someone for crossing over the ‘fog line’.  Courts have ruled that anything on the other side of the fog line is not the ‘roadway’ as defined in 49-119, and so is a violation of the requirement of 49-630 to always drive on the ‘roadway’.  And so if you touch or cross over the fog line, you have given a police officer reason to stop your vehicle.

Equipment Violations

Equipment Violations are one of most frequently used reasons a police officer stops a vehicle.  They like these because they are easy to spot, and they are objective.  Credibility really isn’t an issue because the equipment violation can be easily documented.

The following remaining examples are these types of equipment violations.

Idaho Code 49-949 (Requirement as to Fender or Covers Over All Wheels on Motor Vehicles)

This code deals with fenders and mud flaps.  It’s a complicated statute, but it essentially says that a truck has to have mud flaps if the finder is 10” above the roadway when the truck is unloaded.  The Courts have interpreted the word ‘trucks’ to include ‘pickup trucks’.  Consequently even if you have a stock pickup truck, with no lift, if the fender is more than 10” off the road, you need to have a mud flap that makes up the difference.  Saying you purchased the pickup truck that way from the manufacturer is not a defense.

Also this code requires fender flares if you put on after market tires and wheels that extend out past the fender.  If the tires extend out past the fender, then they can stop you for violating 49-949.

If an officer wants to stop you, and he sees a violation of this statute, he will have a lawful basis to stop you.

Idaho Code 49-944 (Standards for Windshields and Windows of Motor Vehicles)

This law covers tinting of car windows and windshields.  It is a complicated statute, with many different technical requirements.  You may want to read it if you have tinting on your window to make sure you are within regulations.  The police will use that is an excuse to stop you.

Idaho Code 49-937 (Mufflers, Prevention of Noise)

Another low hanging fruit for the police to grab at is a noisy muffler.  The reason that this is a violation that the police will often use is because it is hard to quantify how loud your muffler is.  So accusing you of having a loud muffler is a perfect infraction to accuse you of to pull you over, because you will have difficulty proving that it isn’t.

Idaho Code 49-902 (Vehicle Equipment)

This code has made ii unlawful to operate a motor vehicle that has equipment that is in an ‘unsafe condition’.  The Idaho Court of Appeals held that a cracked windshield is a condition that makes the vehicle unsafe to drive. (See State v. Kinser, 112 P.3d 845, 141 Idaho 557 (Idaho App. 2005))  Even when the crack is on the passenger side of the vehicle.  So if a police officer sees a cracked windshield, he can stop your vehicle, and it will be a lawful stop.

This statute could be used in other scenarios as well, such as busted tail lights, and headlights that are burned out.

So next time you hear it said that the fourth amendment protects American citizens from unreasonable seizures, just remember that the Idaho legislature, and Idaho Appellate Courts have ensured that almost any stop the officers make will be deemed reasonable.

Ferguson, Grand Jury, and Indicting a Ham Sandwich

It is an old joke that a Grand Jury would indict a ham sandwich if you wanted them to.

The joke comes from the reality that Grand Jury proceedings are kind of a sham.

First, the burden of proof at a Grand Jury proceeding is probable cause.  The prosecutor must prove that there is probable cause to bring criminal charges against the Defendant.  Probable cause is the lowest burdens of proof.  The only burden of proof lower is ‘reasonable suspicion’.   The burden an officer must have to stop a vehicle for example.

Second, neither a defense attorney, nor the defendant himself can be present at the Grand Jury proceeding.  The proceedings are closed proceedings.  You can imagine what the consequences are when you have one hand clapping.  The prosecutor’s bias view rules the day.  There are rules of conduct that require the prosecutor to present evidence in mitigation, but you can only imagine the half hearted presentation that this evidence is given.

Consequently, anytime a prosecutor wants to indict a Defendant on a felony charge, he can do so.  It is a very rare occurrence for a Grand Jury to refuse to indict a Defendant.

That is what is so interesting about the Ferguson case.  Why didn’t the Grand Jury indict the officer that shot Michael Brown?  At a minimum it appears that there were conflicting statements from witnesses, some witnesses that say that Michael Brown was surrendering and still being shot.  Whether these witnesses are credible or not, why didn’t the grand jury at least find probable cause?  Did the prosecutor sabotage his own case in order to shift blame from himself to the Grand Jury?  Now the prosecutor can say, well I tried to charge the officer, but the Grand Jury refused to find probable cause.

What bothers me the most is not that the Grand Jury failed to indict the officer.  What bothers me is that under no circumstances would a Grand Jury have failed to indict anyone else that wasn’t wearing a badge.  There is a double standard in our country when it comes to self defense.  When an officer of the law defends himself, he is nearly always given the benefit of the doubt, and nearly always cleared of any wrong doing.  Anytime any other citizen defends themselves they face the very real possibility that they will be charged and convicted of murder.

When can the police come into my home?

Home

For those who follow my blog, you may get the sense that I am less than enthusiastic about the status of our rights in the United States today.  Many of the laws and principles that secured our rights in the past have been eroded away by exceptions to laws that are designed to protect those rights.  Automobile exceptions to the warrant requirement are an excellent example of the erosion of our right to be free from warrantless and unreasonable searches and seizures in our automobiles.  We can thank the war on drugs for that. Continue reading

Never speak to the police!

I’ve graduated from just regular blogging to full blown video blogging!  From time to time when I get a chance I’ll try to do more of these legal video blogs.  Check in this week as I answer questions related to speaking to the police when you’ve been accused of a crime, a suspect in a crime, or even a person of interest in a crime.  Spoiler alert. . . my answer is, you really should never speak to the police if you are being accused of a crime, especially without a lawyer present.  Watch the video though because I go through all the reasons why you should  never speak to the police, and how it could really hurt someone’s case who has been accused of a crime.

Do juries get it wrong?

I am often surprised at how passionate people get about how wrong a jury verdict is when they know very little about the case. We often see great passion from the general public in verdicts like the infamous criminal trials like the O.J. Simpson trial. People will talk for hours about how wrong the jury verdict was, but ultimately tell you very little about the details of the case.

Continue reading

Emmett Corrigan’s killer, Robert Hall, posts $1,000,000 bond.

Robert Hall Accused of Murdering Emmett CorriganAn interesting turn of events has occurred in the case where Emmett Corrigan, a criminal defense attorney in Boise Idaho, was murdered. Robert Hall, the man accused of shooting Emmett Corrigan in the head and chest, was released yesterday on a $1,000,000 bond. In order to be released on a $1,000,000 bond, you would have to post 10% of the bond to a bonding company. That would result in a $100,000 bond owed to the bondsman. Mr. Hall, who is currently being represented at state expense by the public defender, was released on a 1 million dollar bond? That was completely unexpected. Probably unexpected by the magistrate judge, the prosecutor, and the public defender as well. What will Mr. Hall do next? Is he going to face the music, or run? Continue reading

Idaho Senate Kills Bill That Would Allow Concealed Carry on State College Campuses.

Concealed Weapons Permits on College CampusI do not usually get into politics on my blog, but a recent bill was killed in the senate that I had a particular interest in, and a bill that is related to criminal law in Idaho.

The Idaho House of Representatives has passed House Bill 222 by a 41-28 vote. That bill went to a vote in the Idaho Senate’s State Affair’s Committee yesterday, and the bill was killed. A friend of mine, Jonathan Sawmiller, gave live testimony before the Committee. Near the end of his testimony he was interrupted by the Senate Majority Leader Bart Davis, from Idaho Falls.

The video of that exchange can be found Here, and Here. Continue reading

Criminal defendants with less money are more guilty?

One thing is for certain, the vast majority of those in custody in this country’s state prisons, or under supervision by the State, are of the lowest class when it comes to economic wealth. That fact is undisputed. Among those entering prison in the United States in 1991, about 70 percent earned less than $15,000 a year when they were arrested, and 45 percent didn’t have a full-time job. One in four prisoners is mentally ill, and 64 percent never graduated from high school. According to this article, being poor means you are arrested at a higher rate, convicted at a higher rate, and sentenced more harshly. What is unknown, and debated, is why those who are poor end up being convicted of crimes at such high rates. Some say that stupidity got them where they are today. Stupidity made them poor, stupidity caused them to make stupid decisions, and stupidity put them in prison. Others say it’s a moral issue. Immoral behavior made them poor, and immoral behavior got them in trouble, and immoral behavior put them in prison. Continue reading